Plea Of Bias Can't Be Taken After Participating In Selection Process With Knowledge About Composition Of Panel : Supreme Court

The judgement was delivered by a bench of Justices L.Nageswara Rao, Sanjiv Khanna and B.R.Gavai in the case Mohd. Mustafa v Union of India. The judgement authored by Justice L Nageswara Rao upholds the validity of the High Court judgement which had set aside the Central Administrative Tribunal's finding that the appointment of the DGP was liable to be set for not being in compliance with the Prakash Singh guidelines, among other grounds.

Background of the Matter

The Central Administrative Tribunal had set aside the order appointing Mr.Dinkar Gupta as the DGP of Punjab on the ground that that preparation of panel for selection of DGP was in contravention of the Prakash Singh v Union of India case of 2006. According to the Tribunal-

• Seniority being one of the factors, along with good record of service and range of experience to head a police force was not given importance by the Empanelment Committee in finalising the panel
• Draft Guidelines framed by UPSC had no legality.
• Identification of five core policing areas out of twenty is biased and selected to suit the selected candidate.

The decision was challenged and the High Court set aside the judgement of the Tribunal and upheld the appointment of Respondent No.4 as DGP. It noted that:

• The conclusion of the Tribunal that Draft Guidelines have no authenticity must be set aside as they have been approved by the Apex Court.
• There is no requirement for recording reasons while finalising the selection of DGPs
• Tribunal encroached into the domain of experts in setting aside the selection made by UPSC.

Contentions Raised before the Court

Mr.Krishnan Venuopal for the Appellant argued that appointment of Respondent No.4(Gupta) was vitiated by bias due to prior professional antecedents between Respondent No.5(outgoing DGP) and the Appellant and for that reason Respondent No.5 ought not to have participated in the selection process. Relying upon Badrinath v. State of T.N, the counsel has submitted that even if one person of the multi-member committee is biased, the decision of the committee shall be rendered invalid. It was further argued that the the Draft Guidelines are contrary to the directions given by this Court in Prakash Singh's case.

Mr.Mukul Rohatgi appearing for State of Punjab argued that identification of five core policing areas from amongst twenty policing areas for assessment of merit of officers was done by the Empanelment Committee by taking into account the special needs of the State of Punjab. Regarding the allegation of bias, it was submitted that the Appellant was fully aware of initiation of the process for appointment of DGP and the presence of Respondent No.5 in the Committee but did not raise any objection to his continuance in the Empanelment Committee. The Appellant cannot be permitted to raise a bogey of bias at this late hour.

The judgement notes that the Draft Guidelines cannot be said to be contrary to the criteria laid down by this Court in Prakash Singh's case as the Guidelines carry forward the directions given by this Court by stipulating the objective criteria for guidance of the empanelment committees. It notes:

"There is no basis for the conclusion of the Tribunal that the Draft Guidelines are contrary to the directions given by this Court in Prakash Singh's case. The broad criteria mentioned in the said case are seniority, very good record of service and range of experience to head a police force. The Draft Guidelines which have to be scrupulously followed by empanelment committees stipulate that a selection should be on the same criteria." (Para 26)

Further, it notes:

"Inter se merit of the candidates was evaluated according to the objective criteria followed by the Empanelment Committee. The preparation of panel for appointment as DGP (HoPF) for the State of Punjab, by the Empanelment Committee is in compliance of the Draft Guidelines, which are in conformity with the directions issued by this Court in Prakash Singh's case as the panel was prepared after taking into account the relevant considerations as directed by this Court in Prakash Singh's case and stipulated in the Draft Guidelines. As no irrelevant consideration prompted the decision, the preparation of the panel by the Empanelment Committee cannot be said to be irrational." (Para 26)

On the plea that the identification of core policing areas were arbitrary, the judgement holds that identification of five core policing areas- intelligence, law and order, administration, investigation and security- out of a domain of twenty policing areas cannot be said to be an arbitrary exercise as they have been identified considering the peculiar situation of the State of Punjab.

On the plea that the decision of the Committee was arbitrary as it did not make note of the reasons for its decision, the judgement notes:

"Having regard to the nature of the function and the power confided to the Selection Committee, it is not a legal requirement that reasons should be recorded for its conclusion." (Para 26)

On the question of the allegation of bias against one of the Panel members, the judgement notes that given the position and status of the Appellant, the plea that Respondent No.5 was in the Empanelment Committee could not have been a secret for the Appellant. It notes:

"Therefore, the position that Respondent No.5, being the DGP, would be a member of the Empanelment Committee was within the knowledge of the Appellant. Ignorance of this factum when pretended must be rejected as a mere pretence. The two Appellants are not laymen, but senior police officers aspiring for the appointment to the top police position in the State." (Para 29)

The Court relies on Madan Lal and Others v. State of Jammu and Kashmir and Others, which held that when a person takes a chance and participates, thereafter he cannot, because the result is unpalatable, turn around to contend that the process was unfair or the selection committee was not properly constituted.

The judgement also notes that the Appellant too had taken a calculated chance in spite of stakes and then has belatedly raised the plea of bias and prejudice when not recommended. The judgement, in support of its reasoning that Appellant is precluded from raising the plea of bias on the grounds of estoppel, relies on a plethora of cases- Om Prakash Shukla v Akhilesh Kumar Shukla; Dr.G Sarana v University of Lucknow and Others; Madras Institute of Development Studies and Another v. K. Sivasubramaniyan and Others; P.D. Dinakaran (1) v. Judges Inquiry Committee and Others; Manak Lal (Shri), Advocate v. Prem Chand Singhvi and Others.

The judgement makes particular note of the P.D.Dinakaran case, where the Supreme Court had dismissed a writ petition challenging an appointment on the ground that the petitioner was not a lay person and being well-versed in law should have objected to the constitution of committee when notified in the Official Gazette, which factum was highly publicised in almost all newspapers. Notwithstanding the awareness and knowledge, the petitioner did not object, which indicates that he was satisfied that the member had nothing against him. Therefore, belated plea taken by the petitioner did not merit acceptance and mitigates against bona fides of the objection to the appointment of the person as a member of the committee.

Having discussed the ratio in the above cases, the judgement finally notes that:

"In view of the above ratio which is applicable, it is not necessary for this Court to delve further into the allegations and submissions based on assertions of bias and prejudice." (Para 37)

The judgement records that it does not find any error committed by the High Court in setting aside the judgement of the Tribunal and upholding the selection and appointment of Respondent No.4 as DGP.

Coram: Justices L Nageswara Rao, Sanjiv Khanna, B.R.Gavai